# RECEIVED U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS 

## AUG 24 2015

WASIDNGTON,D.C. 

## HEARING DOCKET

In The Matter Of: BIRMINGHAMFLIGHT CENTER, INC. Respondent. DocketNo. FAA-2014-0867 Judge J.E. Sullivan
FAA CaseNo
..2012S0090053
MOTION TO AMEND SCHEDULE TO EXTENDDISCOVERYAND SET DEADLINES FORDISPOSITIVEMOTIONS Pursuantto the Court's April 7, 2015, Scheduling Order, discovery in this matter is set to close tomorrow, August 21, 2015, with pre-hearing filings to begin shortly thereafter, and no time set aside for dispositive motions. However, as of this date, the parties have not yet completed discovery, and will not be able to complete it in the time allotted. Further, the limited discovery completed indicates that this case can likely be resolved by motion, without the need for the time and expense of a hearing. Accordingly, the FAA moves to extend the discovery period, set deadlines for the filing and consideration of dispositive motions, and continue the hearingto a future date consistentwiththese actions. Status of Discovery On July 1, 2015, the undersigned file a Notice ofAppearance as the FAA's counsel of record in this case, noting that prior counsel was no longer with the FAA. That week, the undersigned telephonically contacted Respondent's counsel to discuss the case, including specifically whether there were any pending matters that the FAA needed to address. See

IExhibits A, B. The undersigned left a voice mail with Respondent's counsel to that effect, but received no call or other contactinresponse. See Exhibits A, B. On July 7, 2015, the undersigned served discovery requests on Respondent's counsel via certified mail and facsimile. See Exhibits C, D, E. On July 24, 2015, the undersigned sent a letter to Respondent's counsel. Exhibit 

### A. That letter specifically sought information on "any outstanding obligations on the part ofthe FAA in this matter (e.g. discovery responses) and, ifso, what they are." !d. The undersigned received no response to this letter. On August 1, 2015, Respondentprovidedresponses to a set ofdiscoveryrequests made at
some time prior to July 2015. See Exhibit B. After reviewing those discovery responses, the undersigned sent Respondent's counsel an e-mail on August 10, 2015, again asking Respondent to identify what information Respondent believed the FAA had not yet provided. Exhibit B. Respondent's counsel did notrespondto this e-mail. On August 17, 2015, Respondent's counsel for the first time contactedthe undersigned in order to discuss unspecified discovery matters, which resulted in the undersigned and Respondent's counsel speaking for the first time on August 19, 2015. During that conversation, Respondent's counsel represented that Respondent had served discovery requests on the FAA in April2015, including requests thathad notbeenpreviously available to the undersigned, and that the FAA had not responded to those requests. Respondent's counsel provided the undersigned with copies of those aspects of the discovery requests to which the undersigned had not previouslyhad access. Also during that conversation, Respondent's attorney indicated that he had not been sure what the FAA's intent had been with regards to the July 7, 2015, discovery requests, and that he



### 2had not yet begun to prepare responses to those discovery requests. The undersigned indicated that it did wantresponses to those discovery requests. As a result ofthese circumstances, the parties in this case have onlyjust begun to work
on providing discovery responses to full sets ofdiscovery requests, 1 but discovery is presently setto close tomorrow, August 21,2015. Additionally, during the August 10, 2015, conversation, Respondent's counsel raised the possibility ofwanting to take perpetuation depositions. Itis, at this point, impossible for the parties to complete their discovery obligations during the set discovery period. Although Respondent disagrees and opposes this motion, it is difficult for the undersigned to see how the parties can complete discovery and still fulfill their obligations to exchange witness and exhibit lists by September 18, 2015, even assuming that both parties are fully satisfied withthe other's discovery responses. SummaryJudgment The current schedule for this matter does not include time for filing dispositive motions. At the time the schedule was made Respondent's counsel opined that a hearing would "definitely" be required in this case. April 7, 2015, Scheduling Conference, Tr. at 9. Respondent's counsel has indicated that this remains Respondent's position. At the scheduling conference, the FAA's, when asked about whether a dispositive motion period was needed, statated that "it's hard to make a decision since we haven't really gone through discovery yet ... at this time, the agency doesn't feel as ifit would need that motion period. But again, it'shard to say without discovery, to be honest." !d. at 9-10. As discussed above, discovery in this matter is not yet complete. However, based on the information currently disclosed in discovery, it appears thatthe FAA does need a periodto file adispositive motion.

1The FAA'sdiscovery requests include 15 interrogatories and 6 requests for production (the discovery requests also included requests for admission, which Respondenthad already respondedto). Respondent's discovery requests include 13 interrogatories and 33 requests for production. 

### 3In brief, the FAA alleges in this case that Respondent operated a charter flight that fell within the ambit ofPart 135 ofthe Federal Aviation Regulations and, because Respondent is not
an air carrier and does not have personnel qualified to operate under Part 135, violated a variety of the regulations pertaining to the requirements for Part 135 operations. See Complaint. Respondent does not dispute that the flight occurred, but asserts that it was not a charter flight, butrather a demonstrationflight under 14 C.F.R. § 91.501. Respondent's discovery responses do indicate thatthere are factual disputes as to some ofthe details ofthe arrangements for the flight. However, these disputes appear to be immaterial because Respondent also concedes facts that provethatthe flight was, as amatter oflaw, not ademonstration flight. As a result ofthe above, it is appropriate for a dispositive motion period to be set in this
case. The parties so far have between them identified approximately a dozenpotential witnesses, including at least 8 who seem likely. Holding a hearing will be a significant inconvenience to these witnesses, many ofwhom do not reside in the same state as the hearing location. And holding a hearing, ofcourse, requires a significant commitment oftime and treasure on the part of both parties and the Court. Where, as here, a case can likely be resolved on motions, the burden ofahearing shouldbe avoided. RequestedActions As discussed above, although discovery in this case is set to close tomorrow, August 21, 2015, the parties will not be able to complete discovery in that time frame. Although the procedural schedule currently set envisions a month between the close of discovery and the exchange ofwitness lists and exhibits, the parties are effectively only now beginning to address discovery requests, a process which is also usually assigned a month for completion (even if there are no disputes about the responses). Further, it appears that this case can be disposed ofon

4motion, without the need for a hearing at all. Accordingly, the FAA requests the following modifications to the current schedule: Discovery in this matter be extended for an additional month, to provide the parties with additional time to respond to currently pending discovery requests. No new.discovery requests would be permittedduringthis extendedperiod. A date for dispositive motions be set, withinitial motions due approximately one month after the close of discovery, with an additional month or less for responses in opposition and replies in support, and time as needed for a motion conference and the Judge's consideration ofdispositive motions. The remainder ofthe current schedule to be time-shifted to accommodate these additions, withthehearingto take place in or afterApril2016. Based on prior experience, the undersigned anticipates that the primary factor controlling when a continuedhearing couldtake place would be the Judge's existing hearing schedule. To the extent that additional time would be present in the schedule due to the Judge being unavailable in or before April 2016, additional time could be added to the discovery period to allow for any disputes to be resolved. Ifthe Judge was available before April 2016, the dispositive motion schedule, and the current schedule, could be compressed to permit the parties to appear at a somewhat earlierhearing, in the event that the FAA's dispositive motionis denied in whole orin part. As noted above, Respondent opposes the FAA'srequest to modifythe existing schedule.


### 1""' ubmitted thi/ 

### O day ofAugust, 2015.
CHRISTOPHERR. S EVENSON Attorney Office ofthe ChiefCounsel, EnforcementDivision, SouthernTeam 

### 5CERTIFICATE OF SERVICE I hereby certify that the foregoing Motion to Amend Schedule to Extend Discovery and Set Deadlines for DispositiveMotions was sent: original and onecopy via certifiedmail to: FederalAviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing DocketClerk, AGC-430 WilburWrightBuilding- Suite 2Wl000
one copy via certifiedmail and facsimile to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. DepartmentofTransportation 1200NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 Paul R. Borth, Esq. Barnett & Borth, LLC 800 WaukeganRoad, Suite 200 Glenview, IL 60025 facsimile: (815) 356-7042



## tAUG 202015\ Dated

6

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U.S. Department ofTransportation Federal Aviation Administration



## [JJJL 

## 2_4

**c~** VIA CERTIFIED MAIL Paul R. Borth Barnett & Borth, LLC 800 Waukegan Road, Suite 200 Glenview, IL 60025 facsimile: (815) 356-7042 Southern Region Office ofthe Regional Counsel

Re: FAA v. Birmingham Flight Center, FAA-2014-0867 Mr. Borth: P.O. Box 20636 Atlanta, Georgia 30320 (404) 305-5200 (404) 305-5223 FAX
20 12S0090053

I am writing on several matters concerning the above-referenced case. As you are aware, I recently took overthis case from the prior FAA attorney, who left the Agency. Ihave attempted to speak with you telephonically, but I have not received areturn call. I wished to coverthree matters in particular. First, I wanted to learn whetheryou believethere are any outstanding obligations on the part of the FAA in this matter (e.g., discovery responses) and, ifso, what they are. In the absence ofany such identification, I will presume that my predecessorprovided you with all required information. Second, I wanted to inquire as to Respondent's initial disclosures in this matter. My review of the file does not reveal any initial disclosures by Respondent. Please advise whether initial disclosures were made by Respondent and the FAA'scopyhas simplybeen misplaced, or whether Respondent has riot yet made initial disclosures. Third, my review ofthe file does not reveal that any settlement offers had been extended in this matter. To the extent that my predecessor may have made any settlementoffer ofwhich I am not aware, and to the extentthat any such offer may still be outstanding, any suchpfferis hereby rescinded. Based on my review ofthe file, we are presently willing to accept a reduced civil penalty of$8,000 in full settlement ofthis matter.

GOVERN""ENT EXHIBIT 

# APleasedo nothesitateto contactme

### ifyouhaveanyquestions or concemsregardingthis case. Sincerely, 

### CHRISTOPHERR. STEVENSON Attomey OfficeoftheRegionalCounsel



### · · ostal Service'· CERTIFIED MAIL® R DomesticMail Only 

### ECEIPT

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# ,IStevenson, Chris (FAA) From: Sent: To: Cc: Subject:
Mr. Borth, Stevenson, Chris (FAA) Monday, August 10, 2015 2:42 PM 'Paul Borth' Charles R. Barnett ill RE: Birmingham Flight Center Discovery Responses

As you are aware, I recently took overthis case after my predecessor, DeitrickJohnson, leftthis office. Shortly after taking overthe case at the beginning ofJuly, I called your office and, as you were unavailable, I lefta message asking to speak with you aboutthe case, including whetherthe Respondent was waiting on anything from the FAA in this case. I received no response to that call. I later sentyou a letter about the case. One ofthe subjects addressed in that letter was to ask you to identifywhat, ifany, outstanding obligations you believed there were on the part ofthe FAA in this matter. I have, to this date, received no response to that letter. I note that, in its response to Interrogatory#6, on page 5-6 of Respondent's discovery responses, there is a reference to Respondent awaiting answers to unspecified discovery propounded upon the Administrator. At this point, Ican only reiterate the contents of my priorattempts to contact you- ifyou believe there are any outstanding obligations on the partoffthe FAA, please let me know what they are. Iapologize ifthis was discussed with my predecessor, but in reviewing the file, Ido not see any priorcorrespondence discussing any delinquent obligations on the part ofthe FAA, and Icannot work to provide you with the information if I do not know what it is you seek. Thank you, Christopher Stevenson Attorney Office ofthe Regional Counsel (404) 305-5200
From: Paul Borth [mailto:prb@barnettleqal.com] Sent: Saturday, August 01, 2015 3:48PM To: Stevenson, Chris (FAA) Cc: Charles R. Barnett III Subject: Birmingham Flight Center Discovery Responses Chris: Please see attached answers to your discovery. Please give me acall shouldyouhave any questions. Have a nice weekend. Sincerely, PaulBorth, Esq. Barnett & Borth, LLC. 800Waukegan Road Suite 200 1 GOVERNMEIU EXHIBIT 

# 13Glenview, IL 60025 Direct: 847-809-9520 Office: 800-578-5512 Fax: 815-356-7042 prb@barnettlegal.com Alabama Office: 460I East Lake Boulevard Hangar# 29 Birmingham-Shuttlesworth International Airport (KBHM) Birmingham, Alabama 35217

2CERTIFICATE OF SERVICE
I hereby certifY that the foregoing FAA's First Discovery Requests was sent via certified mail and facsimile to: Paul R. Borth, Esq. Barnett & Borth, LLC 800 Waukegan Road, Suite 200 Glenview, IL 60025 facsimile: (815) 356-7042



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# cDATE, TIME FAX NO. /NAME DURATION PAGE(S) TRANSMISSION VERIFICATION REPORT

07/07 12:53 918153557042 00:02:47 05 07/07/2015 12:55



## ~~~~ : FAA REGIONAL COUNSEL FAX 4043055223 TEL · 4043055200 SER.K; BROD9J925659

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